Citation NR: 9801067
Decision Date: 01/15/98 Archive Date: 01/28/98
DOCKET NO. 95-22 548 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an increased evaluation for status post left
wrist replacement with proximal Rowe carpectomy and radial
stylectomy (minor), previously described as avascular
necrosis (Kienbock Disease), left wrist, currently evaluated
as 30 percent disabling.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
INTRODUCTION
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The veteran had active service from October 1988 to November
1989.
This appeal to the Board of Veterans’ Appeals (the Board) is
from rating actions by the Department of Veterans Affairs
(VA) Regional Office (RO) in Oakland.
The veteran and his wife provided testimony at a personal
hearing held before a Hearing Officer at the RO in October
1995, a transcript of which is of record.
During the course of the current appeal, the rating assigned
for the veteran’s left wrist disability was increased from 20
to 30 percent disabling, effective October 1, 1994. It is
unclear whether, and if so, the extent to which, an effective
date issue remains on appellate status at this time.
The veteran has been hospitalized for treatment and surgical
repair of his service-connected left wrist disability, and
100 percent ratings have been periodically assigned during
those time frames pursuant to the provisions of 38 C.F.R.
§ 4.30, the most recent of which was from November 1 to
December 31, 1996. It does not appear that issues with
regard to any temporary total ratings are any longer pending.
The veteran indicated in writing that he wished to
participate in a Video Conference Hearing before a Member of
the Board, and was scheduled for such a hearing at the RO on
October 6, 1997. He did not appear for that hearing.
The case was forwarded to the Board, and a written
presentation was made on behalf of the veteran by the
Disabled American Veterans, in October 1997. It is noted
that the Power of Attorney of Record, a VA 21-22 dated in
November 1993, is made out to the representative identified
on the front cover of this decision. Accordingly,
clarification needs to take place as to the veteran’s current
and appropriate representative.
A memorandum was prepared for the file, dated October 22,
1997, noting that the veteran had not been given his
requisite 30 day notice of the previously scheduled Video
Conference hearing pursuant to 38 C.F.R. § 19.76.
Accordingly, correspondence was sent by the Board to the
veteran, dated November 4, 1997, asking for his clarification
on the matter of his request for a Travel Board hearing. The
veteran was given three options [i.e., to have a hearing
before a Board Member in Washington, or at the RO, or not to
have a hearing at all], one of which he could elect by
checking the appropriate block and returning this letter to
the Board. The further letter stated, in pertinent part,
that
“If you do not respond within 30 days
from the date of this letter, we will
assume that you still want a hearing
before a member of the Board at the
regional office and we will make
arrangements to have your case remanded
for such a hearing. This action may
significantly delay a decision in your
appeal. However, we are required to
satisfy your due process rights before we
can proceed with a decision in your
appeal.”
The veteran did not return the letter or otherwise indicate
his election of one of the aforementioned options.
Therefore, pursuant to VA’s duty to assist the appellant in
the development of facts pertinent to his claim under
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1996), the Board is deferring adjudication of the issue
prepared and certified for appellate review pending a remand
of the case to the RO for further development as follows:
1. Clarification should be undertaken as
to the veteran’s current representative
after which all due process as to
notification, etc., must be effectuated
in that regard.
2. The RO should take appropriate action
to schedule the veteran, in accordance
with the docket number of this case, for
a hearing at the RO before a Member of
the Board. A copy of the notice to the
appellant of the scheduling of the
hearing should be placed in the record.
Thereafter, the case should be returned to the Board for
appellate consideration. By this remand, the Board intimates
no opinion as to any final outcome warranted. The veteran
need take no action until he is notified.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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